Political Question Doctrine Research Articles

An EU external relations political question doctrine that suffers no human rights exception: Joined cases C-29/22 P and C-44/22 P KS and KD on the Court’s jurisdiction in CFSP matters

An EU external relations political question doctrine that suffers no human rights exception: Joined cases C-29/22 P and C-44/22 P KS and KD on the Court’s jurisdiction in CFSP matters

What climate litigation reveals about judicial competence

AbstractIn recent years, the US and the Netherlands have been on opposing sides of the spectrum regarding climate litigation. Dutch courts, in several revolutionary climate cases, have been an arena of societal change, whilst climate claims in the US have been largely unsuccessful. In a way this difference seems strange, because the US judiciary has the power of constitutional review, whilst the Dutch judiciary does not. Against that background, this paper extensively compares the doctrines of judicial competence regarding political questions in both jurisdictions. As a comparative framework, this paper uses three judicial phases, namely: the institutional phase, the substantial phase, and the remedial phase. Climate litigation reveals that the Dutch doctrine of judicial competence is focused on the substantial and remedial phases, which has allowed it more freedom in reviewing climate litigation. On the other hand, climate litigation reveals that the US doctrine of judicial competence is focused on a strict institutional phase, dominated by the Political Question Doctrine (PQD). The main contribution of this paper to the constitutional debate is that climate litigation reveals fundamental differences in doctrines of judicial competence. This is not only an important takeaway for future climate litigation, but also, in terms of the Radbruch formula, for other potential gaps between the executive and justice.

The political question doctrine in the practice of the Constitutional Court of Ukraine: expedient "self-restraint" or a springboard for malpractice

Introduction. The paper studies the problem of the distinction between the following categories: "politics" and "law". Appeal to the political question doctrine and its introduction into national practice is an important achievement of the Constitutional Court of Ukraine, but the definition of its scope and limits is still an open question. Purpose. This paper is intended to shed some light on certain problem aspects associated with the scope of the political question doctrine and politicization of the Constitutional Court of Ukraine, notably by analysing the relevant legal positions of the Constitutional Court of Ukraine, taking into account the political results, which took place in connection therewith. Results. The line between legal and political issues is quite thin. Taking into consideration the foregoing and that the final decision on whether the respective issue is political shall be taken by the Constitutional Court of Ukraine at its absolute discretion, the definition of the scope and limits of the political question doctrine becomes more and more important. The analysis of the decisions outlined herein and their outcomes shows that certain legal issues have been ignored by the Constitutional Court of Ukraine in favour of the political goals pursued by public authorities. In some cases, a lack of action has been a precondition for the satisfying of political interests, and in other cases the “convenient” legal positions. Conclusion. Decisions of the Constitutional Court of Ukraine shall not be acts of political will. The mission of courts is to resolve issues of law, therefore, the motives of political expediency cannot be at the core thereof. The Constitutional Court of Ukraine is not a tool for perusing political goals. The political question doctrine shall not be used as a springboard for malpractice, as its idea is that courts shall either refuse the hearing of political questions or perform their function when the issue of law takes place. The lack of clear criteria that would allow to distinguish political issues from legal ones causes certain legal uncertainty and unpredictability. It is obvious that the Constitutional Court of Ukraine should not take over functions that are not inherent hereto and turn into an expression of political will.

Mutually Intelligible Principles?

Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation concept while overwriting its relationship with elements of the political question doctrine. In West Virginia v. EPA, 142 S. Ct. 2587 (2022), Justice Neil Gorsuch and his adherents have, in effect, subverted key aspects of Chief Justice John Marshall’s reasoning in Wayman while outwardly relying upon it to claim legitimacy. I conclude that faithfully reading Wayman urges a political question rationale for lower courts to decline to reach the merits of major questions and nondelegation challenges in the wake of West Virginia

Administrative procedural and litigation aspects of the review of governmental actions

The main aim of this paper is to investigate the administrative procedural and litigation aspects of judicial review of governmental actions under the scope of the political question doctrine in Hungary. Governmental actions, due to their political nature, are usually excluded from judicial review, which means that an important safeguard of rule of law does not apply to them. As a result, serious constitutional concerns arise, especially when these decisions, in addition to their political nature, have a legal nature, too, or are administrative adjudicative ones. In these cases, procedural safeguards are even more important. The paper therefore examines such borderline cases in the practice of the Hungarian administrative courts and of the Constitutional Court regarding the existence of judicial review in these cases. The research has not comprehensively covered judicial practice, but focuses only on some characteristic decisions. In addition to examining court cases, the paper covers the statutory background and the theoretical foundations as well.

Political Question Doctrine and Judicial Attitude to Political Controversies in Nigeria: Implications for Constitutionalism

The political question doctrine has become one of the jurisprudential issues in a constitutional democracy, as the courts may not want to exercise judicial review to determine the constitutionality of the action of the other organs of government or a statute before it. As a legal instrument, judicial review has been used to expand or reduce the powers of the governments, but the courts decide to exercise this power discretionarily on the ground that it falls within the province of politics. This study aimed to analyze 'political question' and judicial attitude to political controversies in Nigeria by unraveling how the doctrine of political question has been applied in three main areas–impeachment proceedings, political parties' primary elections, and post-election matters. It also analyzed the judiciary's attitudes to political controversies and evaluated the implications of the political question doctrine to constitutionalism. The study argued that this attitude negates the principle of constitutionalism as it contends that the courts' deliberate avoidance of a political question is typical of the judiciary in Nigeria in most political controversies. Consequently, the courts abuse the issues of discretion and non-justiciable, so that it is imperative to unravel the intricacies of the political question doctrine by undertaking a comprehensive jurisprudential analysis by highlighting the most controversial aspects and how the court's attitude in political controversies undermines its commitment to constitutionalism. Furthermore, it contradicted checks and balances, fundamental human rights, and the rule of law. This study concluded that the doctrine of political question would be judiciously used by the court and not to avoid determining contentious political issues that may likely derail Nigeria's democratic process and stability.

Political Question Doctrine and its Justiciability in Tanzania: A Critical Analysis of Attorney General vs Rev. Christopher Mtikila

This article examines the nature, application, and scope of the controversial political question doctrine. What the doctrine seeks to achieve is at odds with what is intended by the justiciability theory. While justiciability principle aims at allowing all legal questions properly brought before the court to be conclusively determined by the court, political question doctrine intends to deny litigants of legal protection by prohibiting the courts from entertaining legal disputes properly presented and which are otherwise justiciable. The controversy has always been on how to reconcile the two theories. This paper evaluates the existence and efficacy of the doctrine in legal disputes relating to the interpretation of the Constitution. It is submitted that, although the doctrine remains relevant since there are matters of public policy which are constitutionally nonjusticiable, courts in Tanzania have not developed criteria for determining when and under what circumstances should the doctrine be invoked. Keywords: Political Question, Justiciability, Interpretation of the Constitution, Separation of Powers, Judicial Review, Tanzania.

Earl Warren's Last Stand: Powell v. McCormack , Race, and the Political Question Doctrine

Earl Warren's Last Stand: <i>Powell v. McCormack</i> , Race, and the Political Question Doctrine

Earl Warren’s Last Stand: Powell v. McCormack, Race, and the Political Question Doctrine

Earl Warren’s Last Stand: Powell v. McCormack, Race, and the Political Question Doctrine

The Political Question Doctrine and International Law

The Political Question Doctrine and International Law

Advancing Strategic Climate Litigation in Brazil

AbstractClimate change has become a household term. As the climate crisis grows increasingly pressing, climate litigation has proven instrumental as a driver for change. Brazil is an important jurisdiction for climate matters: It is the sixth largest global greenhouse gas emitter, responsible for 3.2 percent of global emissions,1 and home to the largest extension of the Amazon rainforest. Climate litigation has been gaining traction, but it is still far less frequent than environmental litigation at large. Against the backdrop of the state and trends of climate litigation in the country, this article explores theoretical and practical avenues to further expand the strategic deployment of climate cases in Brazil. First, it analyzes how climate claims can be construed with arguments that are impervious to the political question doctrine. Second, it explores possibilities of bringing claims against private entities, challenging more granular obligations arising out of Environmental, Social and Governance (ESG) frameworks. Third, it discusses the role of lawyers in bridging theoretical and practical gaps, namely those between environmental law and climate law, between scientific experts and courts, and between international and domestic climate change regimes.

Making Sense of the Political Question Doctrine: The Case of Kosovo

Abstract Ever since it was announced in Madison v. Marbury, and articulated in Baker v. Carr, the political question doctrine that tends to exclude ‘mega politics’ from judicial check has been a controversial tool of judicial abstention. Not only that it is not universally applied, but it seems also to be losing significance even in countries of its usual influence due to extensive judicialization of ‘mega politics,’ which implies that there is no claim which the courts will not hear. Based on the judicialization of the Kosovo conflict, this paper shows why the doctrine deserves to be revived and even transplanted in jurisdictions outside its usual reach, particularly in disputes regarding real-life unilateral secession.

Congressional Oversight Disputes as Political Questions, Part I

In Part II, I argue that the Mazars dispute currently before the Supreme Court raises political question doctrine concerns and that under a novel framework for evaluating congressional inquiries, the accommodation doctrine can be a tool the courts use for determining that congressional investigations of the private sphere are not tainted by prior investigations of political officials.

Progressive Nature of Social and Economic Rights in Kenya: a Delayed Promise?

This paper evaluates the steps taken towards the progressive realization of social and economic rights (SER) in Kenya. It aims to provide a better understanding of SER and the obligations of the state under international, regional, and national law. It further elucidates the components of progressive realization. Additionally, it identifies the guiding principles of measuring progressive realization and recommendations to develop tools that would monitor progressive realization. Recognition of SER faces many challenges as they are considered as second class rights that are not equal to civil and political rights considered as first-generation rights. The most enduring challenge for SER is that it interferes with the concept of the separation of powers and the political question doctrine by enabling courts to interfere in matters considered to be under the purview of the legislative and executive branch. The paper uses a desktop review of international, regional, and national legal instruments as well as comparative evaluation of SER jurisprudence from a host of jurisdictions. The concept of progressive realization is a goal in the ICSECR, Kenya’s Constitution, and other Constitutions with the implication that SER would be implemented over a period of time. Jurisprudence from other jurisdictions is evaluated to determine the lessons learned by Kenya. The paper demonstrates that progressive realization and implementation of SER are still work in progress before they are finally anchored into mainstream human rights, just like political and civic rights. In conclusion, progressive realization of SER imports an immediate obligation by Kenya having ratified the three human right bodies (ICSECR, UNCRC, and CRPWD) pursuant to Article 2(5)(6) of the Constitution to expeditiously move towards the realization of SER. There is a further presumption that the country would refrain from retrogressive measures and instead adopt the minimum content approach in the implementation of SER.

The Dutch Supreme Court’s Climate Judgment: Its Consequences and Implications for Business – Revolution Through Litigation

The Supreme Court’s ruling in the Urgenda climate case requires that the Netherlands government step up the fight against climate change to reduce CO2 emissions by the end of 2020 by 25% (relative to 1990). Urgent action against ‘dangerous climate change’ was deemed scientifically necessary to safeguard the right to life of Netherlands residents. Upon close analysis, however, this revolutionary judgment appears to be based on uncritical examination of the factual evidence presented by Urgenda, judicial misappropriation of legislative power, expansive interpretations of the applicable law, careless or incomplete reasoning, and intentional omissions. Due to these deficiencies, the court’s ruling will have serious consequences for future policy-making in The Netherlands and the liability exposure of companies in relation to climate change. This article analyses the judgment and discusses its implications. climate change litigation, public interest litigation, value judgments, scientism, right to life, right to a safe climate, partial responsibility, proportional causation, separation of powers, political question doctrine

U.S. Supreme Court Amicus Brief of Prof. Michael T. Morley in Support of Neither Party in Chiafalo v. Washington (19-465) &amp;amp; Colorado Dep't of State v. Baca (No. 19-518)

This Court should reverse the judgment of the U.S. Court of Appeals for the Tenth Circuit in Colorado Dep’t of State v. Baca. The Tenth Circuit abused its discretion in reaching the merits of Respondent Micheal Baca’s constitutional challenge to Colorado’s faithless elector law, since he lacked a valid cause of action under 42 U.S.C. § 1983. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). The constitutional avoidance doctrine requires federal courts to avoid adjudicating unsettled constitutional issues when a case can be fully resolved on other, nonconstitutional grounds. Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). This principle applies even where the parties themselves have not raised the alternate, non-constitutional issue. Neese v. S. Ry. Co., 350 U.S. 77, 78 (1955) (per curiam). The Tenth Circuit erred by adjudicating the merits of Respondent Baca’s constitutional claim rather than dismissing it under § 1983. Additionally, this Court has recognized that Congress has primary constitutional authority for creating damages remedies for constitutional violations. Bush v. Lucas, 462 U.S. 367, 388-90 (1983). In FDIC v. Meyer, 510 U.S. 471, 486 (1994), this Court refused to create a cause of action to allow plaintiffs to sue federal agencies for damages for constitutional violations. By allowing Respondent Baca’s claim to proceed, the Tenth Circuit allowed such a suit to proceed against a state agency, despite the lack of statutory authorization. Finally, by adjudicating Respondent Baca’s constitutional challenge based on a non-existent cause of action, the Tenth Circuit issued a gratuitous advisory opinion. U.S. Nat’l Bank v. Indep. Ins. Agents of Am., 508 U.S. 439, 447 (1993); see, e.g., California v. San Pablo & T.R. Co., 149 U.S. 308, 314 (1893); cf. Muskrat v. United States, 219 U.S. 346, 348-51 (1911). For these reasons, this Court should conclude that the Tenth Circuit abused its discretion in reaching the merits of Respondent Baca’s constitutional claim. With the Tenth Circuit’s ruling set aside, this Court should dismiss the writ of certiorari in Chiafalo v. Washington as improvidently granted, since there would no longer be a split in authority requiring resolution by this Court. In the alternative, this Court should vacate both lower courts’ judgments under the political question doctrine. The Constitution assigns Congress responsibility for counting electoral votes. See U.S. CONST. amend. XII; 3 U.S.C. § 15. As part of that authority, Congress is entitled to determine for itself the validity of electoral votes cast pursuant to states’ faithless elector laws. Cf. Nixon v. United States, 506 U.S. 224 (1993); Roudebush v. Hartke, 405 U.S. 15, 25-26 (1972). Moreover, due to Congress’ constitutional power to count electoral votes, a judicial ruling on the merits in this case creates the possibility that different branches of the federal government will reach different conclusions concerning the constitutionally required outcome of future presidential elections. The identity of the duly elected President, however, is an issue on which the nation has a compelling need to avoid “multifarious pronouncements by various departments.” Baker v. Carr, 369 U.S. 186, 216 (1962). Should this Court reach the merits of the faithless elector issue, however, it should affirm the Supreme Court of Washington’s judgment in Chiafalo and reverse the Tenth Circuit’s judgment in Baca. Faithless elector laws are a valid implication of this Court’s holding that a state legislature’s decision to appoint presidential electors based on the outcome of a statewide popular vote triggers voters’ fundamental constitutional right to vote. See Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam). Recognizing a “fundamental” constitutional right to vote for President would be a hollow formality if a state’s electors could assert a constitutional prerogative to cast their electoral votes for a candidate who had lost the popular vote within that state—or potentially did not even participate in that state’s presidential election at all.

Beyond “unwinding”: Constitutional review strategies in consociations

AbstractThis article contributes to the emerging literature on the role of constitutional courts in consociational democracies. While most works have approached the topic from the perspective of regime dynamics, this analysis focuses on how courts relate to the constitutions they are mandated to enforce. Beyond addressing the empirical question of what choices courts make in their balancing between universal values and stability, this article also investigates how courts do this balancing. Through the analysis of seven cases from two consociations, Bosnia and Herzegovina and Northern Ireland, I argue that courts embrace specific interpretive approaches (proportionality analysis, purposive interpretation, and the political question doctrine) to reconcile the ideas of constitutional supremacy and respect for political agreements. The analysis also demonstrates how—by their nature political—framework agreements establishing consociational settlements become primary reference points for interpreting constitutional documents.

THE NIGERIAN SUPREME COURT AND THE POLITICAL QUESTION DOCTRINE

This paper examines the attitude of the Supreme Court of Nigeria towards the political question doctrine. It interrogates the decisions of the Court in selected landmark cases involving political questions since the First Republic to the Fourth Republic which commenced in 1999. The paper identifies three core approaches espoused by the Court in cases involving political questions – the deference approach, the necessity approach and the avoidance approach. This paper argues that in a constitutional democracy, it is inevitable – considering that the Court is both a political and a legal institution – that the Court, like in other jurisdictions such as Germany, India, South Africa and the United States, will be called upon to adjudicate cases involving political questions. As such, the paper recommends that the Court openly asserts the ‘politicality’ of its decisions, whether they are predicated on the need to defer to the political branches, exigency/necessity or to avoid the political questions brought before it.

A Comparative Study of the Political Question Doctrine in the Context of Political-System Failures: The United States and the United Kingdom

In 2019, the Supreme Courts of both the United States and the United Kingdom decided cases involving the political question doctrine. In Rucho v. Common Cause, the U.S. Supreme Court held that partisan gerrymandering claims raise inherently political questions because the Court was unable to discern judicially manageable standards for determining when a partisan gerrymander had gone “too far.” Whereas, in R v. The Prime Minister (“Miller”), the United Kingdom Supreme Court adopted a narrower view of the political question doctrine, unanimously ruling that although the case involved political actors and the royal prerogative, it did not present a political question. The Court then proceeded to decide the case on the merits, holding that the Prime Minister exceeded his authority in prorogating Parliament before the Brexit deadline. The response of the judiciary—whether to abdicate or to intervene—presents a study in stark contrasts. This paper evaluates Rucho by comparing the United States’ and United Kingdom’s respective political question doctrines through the lens of John Hart Ely’s representation-reinforcement theory of judicial review. According to Ely, the judiciary is uniquely competent to intervene like referees when one side gets an unfair advantage—not when the “wrong side” scores. Translated into legal theory, that means that when the political processes are undeserving of trust, either because certain groups are denied access or because representatives are operating in flagrant disregard of constituents’ interests, courts are fully capable of determining when the political branches have gone “too far.” Both cases illustrate why the Court’s duty to protect from state infringement individual liberties related to democratic participation is at its zenith when system failures denigrate the political process. In Rucho, the Court ignored this calling, abdicating its duty to intervene. Examining Miller reveals where the Court erred in Rucho: (1) Miller is an exemplar of the representation-reinforcement theory of judicial review, (2) Miller offers critical insights to contrast the Court’s approach in Rucho, and (3) Miller offers an example of “judicially manageable standards” for determining when a branch has exceeded the constitutional boundaries of its powers—a standard that the majority in Rucho so desperately seeks. At bottom, Rucho got it wrong—and Miller can help us see why.

Local Governments and Political Question Doctrine in Hungary

The main aim of this paper is to investigate a quite unexamined area: the relationship between political question doctrine and local governments in Hungary. The research focuses on the decisions of Hungarian courts and the Constitutional Court made on this matter. The paper takes under investigation some local governmental acts which have not been reviewed by any court. The main purpose of the research is to find out whether it is possible to take local governmental acts under efficient judicial review in Hungary?